Is the Ombudsman A Wet Bus Ticket?

In February 2013 I discovered my emails to elected representatives of Auckland Council were being blocked. I addressed a Council meeting on 28 February 2013 and the Council called for an investigation by Doug McKay, Chief Executive, and a report back. An independent “investigation” by KPMG and Meredith Connell cost $50,682.02 and was geared towards justifying the Chief Executive’s directive to block my emails and concentrated on “unreasonable customer conduct.”

On 8 August 2013 I complained to the Ombudsman.
Here is the ensuing chronology:
8/8/13 Complaint to Ombudsman re Blocking of emails
14/8/13 Letter from Ombudsman assigning reference number
9/9/13 Email from Lucie Trask, Assistant Investigator, Ombudsman’s office,
asking for more information.
12/9/13 Letter to Ombudsman enclosing 11 exhibits.
26/9/13 Letter from Ombudsman’s office. “Mr McKay is currently in the process
of finalising his report. When a complainant is still dealing directly with
the agency which is the subject of the complaint, the Ombudsman will
not usually agree to intervene until those dealings have been concluded.”
21/10/13 Rang Ombudsman’s office. Concerned about delay. I was asked for
more detail.
22/10/13 Letter to Ombudsman enclosing a copy of the report to Council dated
23/5/13 and a copy of my letter to all Councillors dated 12/7/13.
22/11/13 Letter from Ombudsman’s office advising me “it would be open to you
to write to the Chief Executive of the Council, explain your
dissatisfaction and directly request an apology.”
6/12/13 Ombudsman’s office rang me to tell me the matter of an apology had
been raised with the Council and was “under consideration”.
9/12/13 Rang Ombudsman’s office concerned about delay especially as Doug
McKay would be leaving soon.
10/1/14 Ombudsman’s office wrote advising me Doug Mckay has left and did I
still want the investigation to proceed. I was asked to ring 300 4209 to
discuss the matter.
20/1/14 I rang the Ombudsman’s office to advise I still wanted to proceed with
the investigation.
14/2/14 Ombudsman’s office writes advising a report has been requested from
Stephen Town, CEO, Auckland Council.
19/2/14 Ombudsman’s office advises Dame Beverly Wakem is investigating my
complaint and Stephen Town has been asked to make all relevant papers
available.
30/5/14 I rang Ombudsman’s office to find out what was happening.
6/6/14 Ombudsman’s office advises my complaint has been considered and
they have written to Stephen Town seeking further information.
29/7/14 Ombudsman’s office advises investigator is currently on leave.
18/9/14 Ombudsman’s office advises there have been further discussions with
Auckland Council and it has provided a further report this week which
needs to be assessed.
20/10/14 Dame Beverley Wakem, Chief Ombudsman advises “In essence my
provisional view is that Auckland Council’s decision to decline to
provide you with the apology which you sought in relation to the
directive of the former Chief Executive Doug McKay to block the
delivery of your communications to elected representatives, was not
unreasonable.

My response on 25/10/14 was:
Dear Dame Beverley,

1. On 2 January 2013 I sent an email to Vanessa Neeson, Chair of the Henderson-Massey Local Board (HMLB) re the widening of Te Atatu Rd. On 7 February, at a meeting of the HMLB I expressed concern that the Chair had not replied to my email from a month earlier. She tersely responded she hadn’t received it.

2. On 8 February 2013 I sent an email to Jason Marris, Acting Manager Democracy Services, Auckland Council, asking 5 questions re the blocking of my emails to HMLB.

3. On 11 February 2013 Bruce Thomas replied to my email addressed to Jason Marris and in response to the question “How was the decision conveyed to all HMLB members?” replied “We don’t know that it was at the time.” I sent another email to Jason Marris asking why this was allowed to happen.

4. Later that day Jason Marris emailed me stating “Emails to elected members are often filtered to ensure the most efficient use of their time. Councillors, for example, have dedicated support staff who manage their emails on a daily basis. However, in this situation emails from you to the Henderson Massey Local Board have been filtered since June 2012, which has previously been advised to you by the then Manager of Democracy Services. Please note that there is no legal requirement for emails sent to a council email address to be delivered unfiltered to that email address and that also an email sent to an elected member’s email address is still treated as having been received by council for LGOIMA purposes.” I was astounded as the copy of the MEMO from Doug McKay, CEO, to Darryl Griffin, Manager Democracy Services in June 2012 had made no mention of an intention to block my emails to elected representatives.

5. On 19 February 2013 I wrote to all Local Board members asking
1. Were you aware that my emails to Local Board members have been blocked by Council over the last eight months?
2. Was there any discussion with you before that blocking took effect?
3. Do you accept this practice?

6. On 20 February 2013 Bruce Thomas sent an email to “GRP AC All Local
Board Members” It opened “Dear Local Board member, below is an email
from Gary Osborne. The context to this issue is outlined below in an email
from General Counsel, Wendy Brandon to Gary Osborne. A similar email was
forwarded to Councillors.” The enclosed email was entitled
“Copied email
Gary You will be aware of Grace Haden’s recent complaints in relation to the
diversion of her emails to a single point of contact in Auckland Council.
Grace is one of three vexatious litigants whose emails are directed to a single
point of contact…” It continued with a page of disparaging comments about
Grace Haden. I had certainly never seen that email yet my name was
incorporated into it.

7. On 21 February 2013 I sent the following email to Doug McKay.
“I understand that my emails to Councillors and Local Board members have been blocked for about 8 months.
1. Why was this instigated?
2. Why did no discussion take place on this with Councillors or Local Board members before its inception?
3. Were Councillors or Local Board members afforded any opportunity to request that their email not be blocked?

8. On 22 February 2013 I sent an email to Bruce Thomas asking 5 questions
1. When does Wendy Brandon claim to have sent the email to me?
2. Why is she maligning one ratepayer to another?
3. Who authorised her to send such a communication?
4. Why have I not received the communication?
5. Please send a copy of the original sent by Wendy Brandon.
Numerous efforts to get Wendy Brandon to return my calls failed.
Bruce Thomas told me he had not had a chance to talk to Wendy Brandon so was not prepared to discuss the matter with me.
At 6.10 pm that night he sent an email to “GRP AC All Local Board Members”
“Dear Local Board Members, with regard to my email forwarded from Gary Osborne. As you will recognise, the email is the one I forwarded to you and Gary was included as an addressee in error. Ms Brandon has not sent any emails to Gary Osborne. The “copied email” that was included in my email to you was intended for internal council use only, it is however consistent with email advice sent directly to Ms Haden. I apologise for any confusion this has caused.”

9. On 26 February 2013 I received an email from Bruce Thomas with the Subject Title “How does this look –Update”
“Dear Gary, over the last week you have sent numerous emails to staff and elected members of Auckland Council. Where relevant they have been forwarded to the person concerned. Your queries and questions are currently being assessed by Council staff and will be responded to in due course.”
To this day there has been no response to the majority of them.

10. On 28 February 2013 I addressed a full Council meeting on the issue. Five minutes before I spoke Doug McKay left the meeting. Outside the meeting Doug McKay said the Council had not blocked or censored anybody’s email. He also claimed some Councillors had asked not to receive emails from certain people and the Council “case-managed” those. The Council resolved that the matter be referred to the Chief Executive and a report back.

11. On 2 March 2013 one councillor expressed outrage that “filtering” was done
without their permission . She pointed out that at the start of the council term
she was outraged when her mail was arriving already opened.

12. On 4 March 2013 Bruce Thomas sent me an email responding to the three
questions I had put to Doug McKay on 21 February 2013 (Clause7).
He avoided specific answers to the 5 questions I had put to him on 22
February 2013 (Clause 8).
His email reads
“ Email filtering
On 21 February 2013, you submitted three questions to Doug McKay, Chief
Executive of Auckland Council.
The questions and respective responses are as follows:
1. Why was this instigated?
As advised in an email sent to you on 22 June 2012, the case managing of your emails was instigated to manage the large amount of correspondence generated.
2. Why did no discussion took place on this with Councillors and Local
Board members before its inception?
It was a decision of the Chief Executive.
3. Were Councillors or Local Board members afforded any opportunities to
request that their emails not be blocked?
Yes, recently the Elected Members were afforded opportunity.
With regard to your email dated 22 February entitled “communication”. This relates to an email sent to Local Board members. There was an error in the contextual information. Local Board members were advised of that error.”

13. Concerned that the investigation of the CEO into his own actions was
unsatisfactory, on 10 March 2013 I applied to address the Accountability and Performance committee at its forthcoming meeting on the need for an independent enquiry. On 12 March 2013, Richard Northey, Chairman, denied me permission. I lobbied a number of Councillors who supported my right to speak.

14. On 13 March 2013 I addressed the Accountability and Performance
Committee but half-way through my speech, the Chairman ordered that my
microphone be turned off.

15. On 15 March 2013, in an email to another ratepayer Doug McKay wrote
“There was never an intention to block emails or withhold information from
elected members.”

16. On 21 March 2012 I addressed my local Waitakere Grey Power branch on the
issue and they unanimously voted to send a letter to the Mayor calling for an
independent enquiry.

17. On 26 March 2013 I sent an email to the Mayor asking if there had yet been a
report back to Council and asking for a copy.
Jason Marris responded that there would be a report back “in the near future”.
On 2 April 2013 he emailed me a copy of an email sent to the Mayor and all
Councillors on 28 March 2013 entitled “Customer Case Management”. This
report said it had identified three customers “who would benefit from
specific management to provide a better result for both parties.”

18. On 15 April 2013, a letter from Anna Bird, Office of the Mayor, to Grey
Power stated “Doug McKay, Chief Executive of Auckland Council, has
already carried out an investigation into complaints regarding the
correspondence from Mr Gary Osborne and others. The Chief Executive has
reported back to Auckland Council’s governing body on this investigation,
and a copy of this report has been sent to Mr Osborne directly.”
On 22 April 2013 I wrote to Len Brown asking if he was satisfied with the
report.
On 8 May 2013 he wrote to me “Given that Mr McKay has yet to finalise his
report and the governing body has yet to review its findings, it would
therefore be inappropriate for me to comment further.”

19. On 23 May 2013 a report entitled “Review of external customer, elected
member and staff communication protocols” was presented to the governing
body. It concentrated on UCCs – “unreasonable complainant conduct”, and
did little to address the right of a senior bureaucrat to order the blocking of
emails to elected representatives. It stated “The Office of the Ombudsman
defines unreasonable complainant conduct as any behaviour by a current or
former complainant which because of its nature or frequency raises
substantial health, safety, resource or equity issues for the parties to a
complaint.” The report said the Council had an informal case management
process that was not formally approved by councillors. It stated that a small
minority of complainants, “on average no more than ten annually”, had
conduct that was unreasonable. The external review conducted by KPMG and
Meredith Connell cost $50,682.02.

20. On 8 August 2013 I lodged a complaint with the Ombudsman. I was concerned the “investigation” had been cursory. There had been a number of contradictory statements. No-one had contacted me for my input. I had not received an apology. On 14 August 2013 I was allocated a reference number.

21. On 9 September 2013 Lucie Trask, Assistant Investigator, Ombudsman’s Office requested further information from me including Grey Power communications. On 12 September 2013 I sent off 11 exhibits.

22. On 23 September 2013 Anthony Ilott, Manager – Early Assistance Team, Ombudsman’s Office wrote to inform me “it is unlikely that the Ombudsman will have the authority to investigate the Council’s final decision on this matter.”

23. On 21 October 2013 I spoke to Alex Shroder, Ombudsman’s Office. He requested further information. I sent this next day including the Report to Council dated 23 May 2013 (Clause 19).

24. On 22 November 2013 Anthony Ilott wrote to me advising “it does not appear that an Ombudsman has the necessary authority to investigate your complaint about the adequacy of the full Council’s response to your complaint.” He stated “the memorandum entitled ‘Customer Case Management’, does appear to provide an assurance that your future emails to elected representatives will not be blocked, unless an elected member specifically requests that restrictions be imposed.” “In terms of your request for an apology, it would be open to you to write to the Chief Executive of the Council, explain your dissatisfaction and directly request an apology.”

25. On 27 November 2013 I sent an email to Doug McKay requesting an apology.
On 9 December 2013 he wrote to me saying he did not consider an apology to be appropriate. I contacted Alex Scroder, the contact person named in Anthony Ilott’s letter of 22 November 2013, to express my dissatisfaction.
On 12 December I wrote to Doug McKay and sent a copy to the Ombudsman’s office.

26. On 10 January 2014 Juliet Le Couteur, Senior Investigator, Ombudsman’s
Office wrote to me to say that as Mr McKay was no longer Auckland Council’s Chief Executive an investigation of my complaint would necessarily involve his successor Mr Stephen Town. I was asked to telephone her to discuss the matter.
On 20 January 2014 I phoned Juliet Le Couteur and said I wanted the investigation to proceed.

27. On 19 February 2014 Juliet Le Couteur wrote “Dame Beverley (Wakem) is
investigating your complaint about Mr McKay’s decision declining to provide
you with an apology.” She said they had written to Stephen Town, requested a
report and asked for all relevant papers to be made available.

28. On 6 June 2014 Tinus Schutte, Manager –Investigations and Resolution,
Ombudsman’s Office wrote to me to say they were seeking further
information from Stephen Town.

29. On 18 September 2014 Tinus Schutte wrote to advise me Auckland Council
had provided a further report that week which now needed to be assessed. He
added “The volume of complaints we are currently dealing with means we are
unable to progress matters as quickly as we would wish.”

30. On 20 October 2014 Dame Beverley Wakem, Chief Ombudsman, wrote to
inform me “In essence, my provisional view is that Auckland Council’s
decision to decline to provide you with the apology which you sought in
relation to the directive of the former Chief Executive Doug McKay to block
the delivery of your communications to elected representatives, was not
unreasonable.”

In a Council with elected representatives, it should be the unfettered right of ordinary citizens to contact those representatives. I accept it should be the right of those representatives to decline to enter into correspondence with the people they represent but one must then ask how effective or sincere is their representation.
It should not be in the hands of senior bureaucrats to decide whether or not democratically elected representatives get to see communications correctly addressed to their advertised contact addresses.
There has been a process of denial, contradiction, procrastination, obfuscation, exaggeration and attempted justification in the matter of the blocking of emails to elected representatives of Auckland Council.

My complaint was that my emails to elected representatives were blocked following a directive from the Chief Executive.
Initially, this was denied by the Chief Executive (Clause 10)
He later said there was never an intention to block emails or withhold information from elected members. (Clause 15)
He failed to respond to the questions I had sent him on 21 February 2013 (Clause 7) but instead delegated the matter to Bruce Thomas (Clause 12)
An attempt to malign another ratepayer and link her to me in a MEMO that went out to all elected members was unsatisfactorily explained then merely dismissed as an “error”. (Clause 8)
The attempt to justify the blocking of emails to elected representatives by referring to an email sent to me in June 2012 appears to have been accepted by your office.
The full context of that email was a copy of a MEMO from Doug McKay to Darryl Griffin, Manager Democracy Services dated 19 June 2012.
“Darryl,
I confirm my previous verbal advice that you are assigned to case manage Mr Gary Osborne and respond to any inquiry lodged with Auckland Council by telephone, email, in person or in writing by him.
Please ensure that Mr Osborne, Customer Services (including the call centres) and the Mayor’s Office are aware of this directive.
Doug McKay”
It is certainly not clear from that directive that all elected representatives were to be included. If so, why tell another ratepayer on 15 March 2013 there was never any intention to block emails to elected members?

In summary:
1. I believe that the blocking of my emails to elected representatives by a bureaucrat was wrong.
2. I believe the Chief Executive was acting ultra vires.
3. I am astounded that elected representatives were not made aware of the decision to block their emails. They were told in June 2012 my phone calls with enquiries or complaints to the call centre were to be directed to a central point of contact, Darryl Griffin, on the pretext of a better service for me, but at no stage were they advised of the blocking of emails to them.
4. I still believe I am due an apology.
5. I am astounded that you take the view that the former Chief Executive’s refusal to apologise “was not unreasonable”.
6. I am amazed that you have concluded “it seems that it was intended to facilitate rather than hinder your actions with the Council.”
7. I am amazed that you stated “If elected representatives had any substantial difficulty with the arrangement , they could have raised their concerns with the Chief Executive when they were informed it had been put in place.” They weren’t told their emails would be blocked.

Yours sincerely,
Gary Osborne

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